Violation of the Game Industry Promotion Act

Attorney C, D

A defendant shall be punished by imprisonment for one year.

except that the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

Probation of the accused shall be ordered and community service for 80 hours.

(a) A prosecutor;

1) misunderstanding of facts as to the acquittal of reasons

According to the evidence submitted by the prosecutor, the program in the facts charged (hereinafter referred to as "the program of this case") is a program that can damage, destroy, alter, forge, or interfere with the operation of the E game program (hereinafter referred to as "the game of this case") as stated in the facts charged.

2) Unreasonable sentencing

The sentence of the court below (one year of imprisonment (two years of suspended execution) and one year of probation) is too unfluent and unreasonable.

B. Defendant

1) misunderstanding of legal principles as to guilty portion

A violation of the Game Industry Promotion Act, which is decided by the court below, constitutes an inclusive crime.

2) Unreasonable sentencing

The sentence of the court below is too unreasonable.

2. Judgment on the prosecutor's assertion of mistake of facts

A. Summary of the facts charged

No one shall destroy, alter, or forge an information and communications system, data, program, or similar without any justifiable ground, nor shall convey or spread a program that may interrupt the operation of such system, data, program, or similar (hereinafter referred to as "malicious program").

Nevertheless, around July 18, 2016, the Defendant advertised that he sells “J”, a malicious program with functions to automatically control the other party from the “E” game operated by the Defendant on the Internet homepage (H), etc. operated by the Defendant at the Defendant’s residence in Bupyeong-gu Incheon, Bupyeong-gu, and subparagraph G, and sold or distributed malicious programs without justifiable grounds by receiving KRW 40,000 from K to the L bank M account in the Defendant’s name after receiving KRW 40,000 of the same day sales proceeds from the same contact to the L Bank M account in the Defendant’s name. In addition, from around July 18, 2016 to July 3, 2017, the Defendant received KRW 3,612 more than a total of KRW 19,230,000 in total, as indicated in the attached list of crimes.

B. Determination

In light of the following circumstances, it is reasonable to view the instant program as a program that could interfere with the operation of the instant game in light of the evidence duly adopted and investigated by the lower court.

1) The instant game is a multiple user scam game. The user belongs to one of the two teams consisting of five women, and each user is an online game that pressures a counterpart team by performing fashion, such as selecting one of the herocon character provided in the game and constituting a hub in the former Chapter. The user is playing the character at his own choice on the one-person screen, and the other team character is turned into a scam, and the life is cut in the body capacity of the counter team character, thereby reducing the capacity of the counter team character. Since the counter team character continues to move and the counter team character is hidden following an obstacle, in order to attack the counter team character, it is necessary to grasp the location of the counter team character and launch the arms accurately, and then, it is possible to check the remaining body character of the counter team character. In this case, the other team character can be identified by marking its body character on the side of the counter team character, the other team character can be identified.

2) The instant program provides that the user automatically searches the location of the body part, indicated on the other team character, and automatically follows it, if the user participates in the attack of the other team character even once. The user, as a user, can easily success in attack against the other team character only by launching a weapon under the automatic control without the need to ascertain the location of the other team character and undergo the process to coordinate it.

3) In order to take advantage of the game of this case, the game of this case must ultimately serve as a hub for the former funeral, and the access of the counterpart team character that obstructs this process should be excluded. Therefore, it is very important factor in the game of this case to identify the location of the counterpart team character depending on his/her physical strength and antipathic and antipathic, and to accurately discover and launch it.

4) However, the use of the instant program leads to automatic search and automatic control by an external program, which was entirely not scheduled by the operator of the instant game. The substitution of important elements in the performance of the game by the instant program through a separate program, which is not scheduled by the developer, would substantially undermine the normal method of the performance of the instant game and the rating granting system according to the user’s ability to perform, i.e., the instant game operation, and the overall operation of the instant game. Moreover, it would be impossible to operate the game in a normal manner by allowing other users to raise questions about the fairness of the game, and by causing other users to lose their interest and competition.

5) Therefore, it is reasonable to view the program of this case as a malicious program that may interfere with the operation of the game of this case. The Defendant asserts to the effect that the program of this case is merely a simple ticket that does not alter the domain of the game of this case. However, considering the legislative intent and purpose of the Act on Promotion of Information and Communications Network Utilization and Information Protection, the text and text of relevant provisions, etc., it is difficult to view that the scope of application of Article 48 (2) of the same Act can be limited to the case of alteration of the domain of the program, etc. (i) Article 2 subparagraph 7 of the same Act limits the subject of "infringes" to "information and communications network" and Article 48 of the same Act, while the program of this case extends to "data or program, etc.", it is difficult to view that Article 48 of the same Act does not directly interfere with the operation of the program of this case without any interference with the operation of the program of this case.

C. Sub-committee

The judgment of the court below that acquitted this part of the facts charged is erroneous in the misunderstanding of facts or in the misunderstanding of legal principles, which affected the conclusion of the judgment. In addition, this part of the facts charged is in a mutually competitive relationship between the violation of the Game Industry Promotion Act and the ordinary concurrence under Article 40 of the Criminal Act, and

3. Judgment on the misapprehension of the legal principle of the defendant

A. Where multiple acts falling under the name of the same crime continue to be committed for a certain period under the single and continuous criminal intent and the legal benefits from such damage are the same, each act should be punished as a single comprehensive crime. In a case where there is a difference in the scope of punishment as a result of a mistake in the evaluation of the number of crimes, there is an error of law by misunderstanding the legal principles on the number of crimes, which affected the conclusion of the judgment (Supreme Court Decision 2003Do6288 Decided December 26, 2003).

B. In light of the following circumstances acknowledged by the evidence duly adopted and examined by the court below, it is reasonable to view that the crime of violating the Game Industry Promotion Act as stated in the judgment below constitutes an inclusive crime.

1) The Defendant sold the instant program 3,612 times from July 18, 2016 to July 3, 2017. The said act continued for a certain period of time repeatedly.

2) The Defendant’s act is selling the instant program to many unspecified persons via the Internet, etc., and the same type of act is identical to that of the instant program, and the content of the program sold is also the same. Unless there are circumstances to deem that the Defendant’s criminal intent is severed, it is reasonable to deem that the Defendant has repeatedly committed the foregoing behavior under the single and continuous criminal intent

3) Articles 46 Subparag. 3-2 and 32(1)8 of the Game Industry Promotion Act provide for punishment of the act of distributing computer programs provided or approved by game products related business entities for the purpose of hindering the normal operation of game products, and have the purpose of protecting game products related business entities, thereby promoting the game industry and establishing a healthy game culture for the public. Accordingly, the legal benefits arising from the Defendant’s act are the same.

C. Sub-committee

The judgment of the court below that judged a violation of the Game Industry Promotion Act as a substantive concurrent crime is erroneous in the misunderstanding of legal principles as to the number of crimes, which affected the conclusion of the judgment. Furthermore, since the violation of the Game Industry Promotion Act as stated in the judgment of the court below is not guilty in the judgment of the court below and the ordinary concurrent crimes under Article 40 of the Criminal Act,

4. Conclusion

Since the appeal by the prosecutor and the defendant is well-grounded, the judgment of the court below is reversed under Article 364(6) of the Criminal Procedure Act without examining the grounds for unfair sentencing by the prosecutor and the defendant, and the following judgment

【Discretionary Judgment】

Criminal facts

1. Violation of Information and Communications Network Utilization Promotion Act;

No one shall deliver or spread any program (hereinafter referred to as "malicious program") that may damage, alter, or forge an information and communications system, data, program, etc., or interfere with the operation thereof without justifiable grounds.

Nevertheless, around July 18, 2016, at the Defendant’s residence in Bupyeong-gu, Incheon, F, and H, the Defendant advertised that he sells “J”, a malicious program with the function to automatically control the other party from the “E” game operated by the Defendant on the Internet homepage (H) operated by the Defendant, etc., and then, the Defendant sent KRW 40,000 from K to the L bank M account in the name of the Defendant to the above site after receiving KRW 40,000 of the same day from K to the L Bank M account in the name of the Defendant, and distributed or distributed the malicious program without justifiable grounds by selling “I”, as described in the attached list of crimes, from July 18, 2016 to July 3, 2017 by receiving a total of KRW 3,612 times in total, KRW 19,230,00, as described in the attached list of crimes.

2. Violation of the Game Industry Promotion Act;

No one shall distribute computer programs, apparatus or device not provided or approved by a game products related business entity for the purpose of interfering with the normal operation of game products or produce them for the purpose of distribution.

Nevertheless, the Defendant received a total of KRW 199,230,000 in total over 3,612 times, as shown in the attached list of crimes, at the time and place specified in paragraph (1) in the same manner as described in paragraph (1), and sold the above “J” without approval, thereby distributing a computer program not provided or approved by a game products related business entity for the purpose of hindering the normal operation of game products.

Summary of Evidence

1. The defendant's partial statement in court below

1. Statement made by the police with N (a copy);

1. Details of account transactions;

1. Reference materials related to suspect A;

Application of Statutes

1. Article applicable to criminal facts;

Articles 70-2 and 48(2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., Article 46 subparag. 3-2 and Article 32(1)8 (generally) of the Game Industry Promotion Act, and each choice of imprisonment with labor, respectively.

1. Commercial competition;

Articles 40 and 50 of the Criminal Act

1. Selection of punishment;

Imprisonment Selection

1. Suspension of execution;

Article 62(1) of the Criminal Act (Consideration of favorable circumstances shown in the reasons for sentencing below)

1. Probation and community service order;

Article 62-2 of the Criminal Act

Reasons for sentencing

[Ligue circumstances] The defendant confessions his act and reflects his act. The defendant deposited KRW 150 million for a limited liability company. The defendant has no record of criminal punishment except that he was punished once by a fine in 2010.

[Unjustifiable circumstances] Each of the crimes of this case is that the defendant interfered with the normal operation of the game by selling a program that was provided or not approved by game products related business entities, and such crime is serious in light of the details and period of the crime, the number of sales, and the amount of profit acquired by the defendant

As such, the sentencing grounds revealed in the proceedings of this case, such as the defendant's age, character, conduct, family relationship, environment, etc., shall be determined as per the disposition.

Judge Cho Jae-han

Judge Powers Governing Authority